Employers are required under law, as well as encouraged to take
the necessary precautionary steps at the workplace to prevent or
mitigate the exposure or infection of the virus.

This bulletin highlights some steps which employers may take in
addressing Covid-19 in the workplace.

THE EMPLOYER'S GENERAL OBLIGATION/S

As mentioned in our earlier bulletin, the Occupational Health
and Safety Act 85 of 1993 ('OHS') regulates the legal
obligations of employers to ensure and maintain a safe working
environment.

Ultimately, and as a general overarching duty, the OHS requires
employers to take, as far as reasonably practicable, measures to
ensure the protection of its employees without risk to their health
with the objective to create a safe working environment.

What does this mean given the Covid-19 health
crisis/pandemic?

In line with the directives of the WHO and South Africa's
National Institute for Communicable Diseases (NICD), employers are
directed, bearing in mind the nature of the work and workplace, to
take preventative and/or mitigatory measures to protect the health
of its employees and the spread of the outbreak.

Examples of reasonably practicable measures which can be taken
at the workplace include the following:

Place hand sanitizers at various
accessible areas of the workplace;

Avoid physical contact such as
handshakes;

Impose travel bans on employees to
travel for work, even in areas with medium to low risk to exposure
(especially if it requires a gatherings or a congregation of large
amounts of people);

If an employee intends travelling for
personal reasons, that employee can be expected to disclose where
he or she will be travelling, the duration of the travel, whether
he or she will be present in places with a high density of people
and the precautionary measures taken to prevent or mitigate risk of
exposure etc.;

Re-assess whether to hold face to
face, or 'in person', meetings. In other words, attempt to
avoid meetings where employees and individuals are in close
proximity to each other. As an alternative, using email, video
conferencing platforms, what's app work group chats,
tele-conferences etc.; as substitutes;

Advise employees on self-assessment,
symptom reporting and stay at home when ill, given the
well-publicized symptoms such as respiratory breathing problems,
fever, coughing etc.;

Provide employees with the contact
details of the relevant authority in the event an employee or
employees believe they have been exposed or infected whether at the
workplace or anywhere else, or otherwise demonstrate such symptoms
thereof;

In keeping with the principle of
"self-distancing":

consider implementing flexible
working arrangements. As an example, the reduction in the amount of
employees attending the workplace by structuring alternative
working days for some employees to work remotely from home, and on
other days, for them to attend the workplace. This measure can
operate cyclically and apply to groups of employees at each given
time. For those employees who do work from home, they should be
encouraged not to attend public places or gatherings or any places
which would likely constitute possible high exposure;

consider whether it would be
operationally feasible to direct all employees to work remotely
from home. In this respect, an action plan to coordinate the
"work remote from home" can then be devised to ensure
there is no significant interruption with the operations of the
employer and there is in essence a continuation of some level of
business operation when this takes effect.

It is pertinent to differentiate between an employee working
remotely from home which constitutes the tender of services to the
extent reasonably possible, in contrast to, when an employee stays
at home and does not tender services. The latter will be addressed
below.

Employees who have travelled abroad

In terms of the NICD and WHO Guidelines, persons who have
returned to South Africa after having travelled to high risk areas,
will be required to self-isolate for at least 14 days. In such an
instance:

If the employee travelled for
business reasons, the employer would be obliged to remunerate the
employee for the period of self-isolation.

However, if the employee travelled
for personal reasons, the principle of "no work, no-pay"
can be invoked and the employer need not pay the employee.

If employees have travelled to low to medium risk areas, they
are only obliged to self-isolate if symptomatic. In such instance,
we would again recommend that employers consider the obligation to
remunerate on a case by case basis depending on the reasons for
travel.

Employees who do not wish to attend the workplace

Employers may be confronted with a situation where some
employees simply have no intention of attending the workplace. This
is especially if the outbreak increases even further which would
provide impetus to anxiety, fear, distress etc.

Presuming the employee expresses this intention based on the
above fear etc. and stays at home of their own volition, an
employer could require that employees take their accrued annual
leave during this period and thereafter proceed to unpaid leave
once the annual leave entitlement is exhausted.

However, this is distinguishable if an employee is in fact
diagnosed with Covid-19 or is declared by their medical
practitioner to have a below average immune system which would make
them more susceptible to infection.

Employees who are diagnosed with Covid-19 or have been
declared by their medical practitioner to have a higher
susceptibility of Covid-19 infection based on their below average
immune system

If an employee is diagnosed as having been infected with
Covid-19, on presentation of a medical certificate, the employee
will be entitled to paid sick leave in terms of the Basic
Conditions of Employment Act 75 of 1997.

Another pertinent scenario that could present itself is if a
medical practitioner diagnoses an employee to have a below average
immune system and directs the employee to stay at home because of
the higher potential of risk. In our view, this would also
constitute paid sick leave.

WHAT ARE THE EMPLOYER'S RIGHTS UNDER THE LRA?

Operational/Retrenchment Exercise

Although as a rather exceptional scenario, should the Covid-19
outbreak become uncontrollable with an unavoidable proliferated
infection rate throughout South Africa (similar to countries
outside of China such as Italy, Spain, South Korea, Iran, France
and Germany) this would place businesses in a very compromised and
volatile financial state.

Should an employer's business irreparably suffer by virtue
of a continued or exacerbated Covid-19 health pandemic, an employer
would of course be entitled to explore or invoke the provisions of
section 189 of the Labour Relations Act 66 of 1995
("LRA") in regard to embarking on an
operational/retrenchment exercise.

The negative consequence of the Covid-19 crisis on business
would be justified as an operational rationale to embark on
retrenchment exercise should this significantly and adversely
affect the employer's business for an unsustainable period.
This, naturally, would be a last resort and depending on external
market forces, the extent employees are able to perform their
functions (including working remotely etc.), and impact on
infrastructure relied upon by the employer etc.

Medical incapacity/boarding

If some employees do not properly recover from a Covid-19
infection, and the medical condition endured (as each case is
assessed individually) appears to have affected their general
health which in turns impacts on their ability to fully perform at
work, an employer would be required under the LRA and read with
Code of Good Practice on Dismissal to convene and undergo a medical
incapacity hearing in order to determine the extent the employee is
suitably able to perform their functions. Should there be no
suitable alternatives, and the period of absence is excessive or
indefinite, it will perhaps be justifiable to dismiss the employee
based on the ground of medical incapacity or to medically board the
employee if there is a policy in place for this eventuality.

Disciplinary steps for misconduct (insubordination,
non-Attendance at work etc.)

There may be a scenario where the employer implements certain
measures in place to protect the well-being of employees but at the
same time ensuring the continued operational viability of the
business, however, an employee or a group of employees simply
refuse to abide to such reasonable instructions.

In this regard, you will be within your rights to consider
taking disciplinary steps against the employee(s). Depending on the
severity of the misconduct, and the consistency of workplace
discipline, you will be able to issue a verbal warning, written
warning, and/or a final written warning. If some employees persist
with their misconduct, this could warrant a formal disciplinary
hearing at an appropriate stage in the future and possibly leading
to dismissal.

Can an employer reduce hours of work or impose a complete
shutdown?

An employer can indeed consider either shutting down its
operations or reducing the hours of work, as a measure to mitigate
the amount of possible exposure during the time employees spend at
work.

In such an instance, the employer remains obliged to remunerate
its employees.

What if government declares a national shutdown, a supervening
impossibility?

In the exceptional event of Covid-19 rapidly increasing to an
uncontrollable rate, the Government may be inclined to protect the
safety of its citizens and declare a national shutdown.

In this instance, contracts of employment may be said to be
suspended by virtue of the supervening impossibility of
performance. The obligations of both the employer and the employees
are suspended while performance became impossible because of the
prevailing circumstances.

Given the temporary nature of the suspension, the employment
contract does not come to an end. It simply means that so long as
the employee cannot tender his/her services by virtue of the
national shutdown, the reciprocal obligation of the employer to pay
the employee is suspended.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

Employers, from large corporations to small to medium entrepreneurs and businesses have had no alternative but to implement short time work, reduce salaries, place Employees on unpaid leave as a no work no pay circumstance...

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